Income Tax Appellate Tribunal - Bangalore
M/S.Alten Calsoft Labs(India) Private ... vs Deputy Commissioner Of Income-Tax, ... on 12 October, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
"B"BENCH : BANGALORE
BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND
SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER
M.P. No. 69/Bang/2018
(in IT(TP)A No. 403/Bang/2017)
Assessment Year : 2012-13
M/s. AltenCalsoft Labs
(India) Pvt. Ltd.,
7th Floor, Tower D, IBC The Deputy
Knowledge Park, Commissioner of Income
4/1, Bannerghatta Main Vs. Tax,
Road, Circle - 1 (1) (1),
Sudduguntepalya, Bangalore.
Bangalore - 560 029.
PAN: AAECC2705R
APPELLANT RESPONDENT
Assessee by : Shri Chavali Narayanan, CA
Revenue by : Shri L.V. Bhaskar Reddy, Addl. CIT (DR)
Date of hearing : 28.09.2018
Date of Pronouncement : 12.10.2018
ORDER
Per Shri A.K. Garodia, Accountant Member
This M.P. is filed by the assessee on 14.03.2018 contending that there are certain apparent mistakes in the Tribunal order dated 31.08.2017. This was noted that the M.P. filed by the assessee is filed after the expiry of prescribed period during which an M.P. can be filed by any side i.e. within 6 months from the end of the month in which the Tribunal order is passed. Pointing out this defect, a defect memo was issued by the registry to the assessee.
2. In the course of hearing of the M.P. also, this was pointed out by the bench that the present M.P. filed by the assessee is belated and therefore, not maintainable. In reply, it was submitted by ld. AR of assessee that the order of the Tribunal was received by the assessee on 19.09.2017 and in support of this M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 2 of 9 contention, ld. AR of assessee submitted a certificate issued by the Registry of the Tribunal as per which the impugned Tribunal order was issued to the assessee counsel by hand on 19.09.2017. Thereafter the ld. AR of assessee placed reliance on a judgement of Hon'ble Gujarat High Court rendered in the case of Peterplast Synthetics (P.) Ltd. Vs. ACIT as reported in 364 ITR 16 and it was submitted that as per this judgement of Hon'ble Gujarat High Court, if the M.P. of the assessee has been filed within the prescribed period from the date of actual receipt of the judgement by the assessee, such an M.P. filed by the assessee should be admitted and decided. He also placed reliance on a Tribunal order of Chandigarh bench of the Tribunal rendered in the case of Shri Jagmohan Gurbakshish Singh Vs. DCIT in M.A. No. 42/Chd/2018 (in ITA No. 101/Chd/2017) dated 27.04.2018 in support of the same contention that if the M.P. filed by the assessee is within time from the date of receipt of the order by the assessee then such M.P. is a valid M.P. and should be admitted and decided.
3. As against this the ld. DR of revenue submitted that the present M.P. filed by the assessee is beyond the prescribed period of expiry of six months from the end of the month in which the impugned Tribunal order was passed and therefore, this M.P. of assessee is belated M.P. and it should not be admitted. In support of his contention, reliance was placed on a Tribunal order rendered in the case of Smt. Padma K. Bhat Vs. ACIT as reported in [2017] 166 ITD 172 (Bangalore-Trib.). He also submitted that the judgment of Hon'ble Gujarat High Court cited by the learned AR of the assessee is not applicable because this is in context of old provisions and the tribunal order of Chandigarh bench has simply followed the same judgment of Hon'ble Gujarat High Court and therefore, this tribunal order is also not a binding precedence.
4. We have considered the rival submissions. First of all, we reproduce the provisions of sub-section (2) of section 254 as amended by Finance Act, 2016 w.e.f. 01.06.2016. The same are as under.
"(2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 3 of 9 the mistake is brought to its notice by the assessee or the Assessing Officer :"
5. Now we also reproduce the provisions of sub-section (2) of section 254 before amendment. The same are as under.
"(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer :"
6. In the present case, the dates are not in dispute that the Tribunal order is dated 31.08.2017 and as per the certificate issued by the Registry of the Tribunal, the said Tribunal order was issued to the assessee counsel by hand on 19.09.2017. This is also not in dispute that if the prescribed period of expiry of 6 months is counted from the end of the month in which the order is passed by the tribunal, than the M. P. filed by the assessee is a belated M. P. but if the same is counted from the end of the month in which the tribunal order was served on the assessee than the present M. p. is in time. Hence, the issue to be decided by us is whether limitation period of six months from the end of the month in which the Tribunal order is passed should be counted from the end of August 2017 being the month in which the Tribunal order has been passed or the end of the month of September 2017 being the month in which the order was served on the assessee. In this regard, this is also very important fact and it should be taken note of that the impugned Tribunal order dated 31.08.2017 was pronounced in the open court on 31.08.2017. It was also uploaded on the website of the Tribunal. In the light of these facts, as noted above, now we examine the applicability of various judgements cited by both sides.
7. First of all, we examine the applicability of Tribunal order cited by ld. DR of revenue having been rendered in the case of Smt. Padma K. Bhat Vs. ACIT (supra). In this case, the Tribunal passed the order on 04.01.2016 and the M.P. was filed by the assessee on 10.03.2017. In this case, the Tribunal has considered the judgement of Hon'ble Bombay High Court rendered in the case of Bharat Petroleum Corpn. Ltd. Vs. ITAT as reported in [2013] 359 ITR 371 and the relevant paras of this judgement of Hon'ble Bombay High Court being paras 16 to 21 of that judgement are reproduced by Tribunal and these paras M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 4 of 9 from the judgement of Hon'ble Bombay High Court are reproduced hereinbelow also for ready reference. The same are as under.
"16. It was next contended on behalf of the petitioner that the power of the Tribunal under section 254(2) of the Act is only to rectify an error apparent from the record. It does not empower the Tribunal to recall its earlier order dated December 6, 2007, for which the miscellaneous application was filed on August 6, 2012. It was submitted on behalf of the petitioner that the application under section 254(1) of the Act would be the only provision under which an application could be made for recall of an order, as under section 254(2) of the Act only the order can be rectified but cannot be recalled. We find that there is an error apparent on record and the miscellaneous application is to correct the error apparent from the record. The consequence of such rectification application being allowed may lead to a fresh hearing in the matter after having recalled the original order. However, the recall, if any, is only as a consequence of rectifying the original order. It is pertinent to note that section 254(2) of the Act does not prohibit the recall of an order. In fact the power/jurisdiction of the Tribunal to recall an order on rectification application made under section 254(2) of the Act is no longer res integra. The issue stands covered by the decision of the apex court in Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC) which held that though the Tribunal has no power to review its own order, yet it has jurisdiction to rectify any mistake apparent on the face of the record and as a consequence, therefore, the Tribunal can even recall its order. In the above case, before the apex court on October 27, 2000, the Tribunal dismissed the appeal of stock exchange holding that it was not entitled to exemption under section 11 read with section 12 of the Act. On November 13, 2000, the stock exchange filed a rectification application under section 254(2) of the Act before the Tribunal. The Tribunal by its order dated September 5, 2001, allowed the application and held that there was a mistake apparent on the record which required rectification. Accordingly, the Tribunal recalled its order dated October 27, 2000, for the purpose of entertaining the appeal afresh. The Revenue filed a writ petition in the Gujarat High Court challenging the order dated September 5, 2001. The above challenge by the Revenue was turned down by the Gujarat High Court. The Revenue carried the matter in appeal to the apex court which also dismissed the appeal of the Revenue. The apex court observed that the Tribunal in its original order while dismissing the stock exchange (assessee's) appeal overlooked the binding decisions of the jurisdictional High Court. This mistake was corrected by the Tribunal under section 254(2) of the Act. The Supreme Court held that the rectification of an order stands on the fundamental principle that justice is above all and upheld the exercise of power under section 254(2) of the Act by the Tribunal in recalling its earlier order dated October 27, 2000. Thus, recall of an order is not barred on rectification application being made by one of the parties. In these M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 5 of 9 circumstances, the application would be an application for rectification of the order dated December 6, 2007, and would stand governed by section 254(2) of the Act.
17. In the facts of the present case there can be no denial that the order dated December 6, 2007, suffers from an error apparent from the record. The error is in having ignored the mandate of rule 24 of the Tribunal Rules which required the Tribunal to dispose of the matter on the merits after hearing the respondents. In these circumstances, an application for rectification would he under section 254(2) of the Act. The recall of an order would well be a consequence of rectifying an order under section 254(2) of the Act. In these circumstances, we find no reason to interfere with the order of the Tribunal holding that the miscellaneous application filed by the appellant is barred by limitation under section 254(2) of the Act as it was filed beyond a period of four years from the order sought to be rectified.
18. Before concluding, we would like to make it clear that an order passed in breach of rule 24 of the Tribunal Rules, is an irregular order and not a void order. However, even if it is assumed that the order in breach of rule 24 of the Tribunal Rules is a void order, yet the same would continue to be binding till it is set aside by a competent tribunal. In fact, the apex court in the Sultan Sadik v. Sanjay Raj Subba reported in [2004] 2 SCC 377 h observed as under:
"Patent and latent invalidity In a well known passage Lord Radcliffe said: 'An order, even if not made in good faith, is still an act capable at legal consequences. It bears no brand of invalidity upon its forehead.. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' This must be equally true even where the 'brand of invalidity' is plainly visible : for there also the order can effectively be resisted in law only by obtaining a decision of the court." Further, the Supreme Court in Sneh Gupta v. Devi Sarup [200916 SCC 194 has observed: "We are concerned herein with the question of limitation. The compromise decree, as indicated herein before, even if void was required to be set aside. A consent decree as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963, would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all." Therefore, in this case also the period of four years from the date of order sought to be rectified/recalled will apply as provided in section 254(2) of the Act. This is so even if it is assumed that the order dated December 6, 2006, is a void order.
19 We shall now answer the questions arising in this case as raised by M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 6 of 9 us in paragraph 4 above as under :
Question (a) : No. The Tribunal has no power in terms of rule 24 of the Tribunal Rules to dismiss an appeal before it for non-prosecution. Question (b) : The miscellaneous application for recall of an order falls under section 254(2) of the Act and not under section 254(1) of the Act.
Question (c) : Does not arise in view of our response to query (b) above.
20. In view of the reasons given hereinabove, we find the Tribunal was correct in dismissing the miscellaneous application by its order dated April 10, 2013, as being beyond the period of four years as provided under section 254(2) of the Act.
21. Accordingly, the petition is dismissed with no order as to costs."
8. From the above paras of the judgment of Hon'ble Bombay High Court, we find that Hon'ble Bombay High Court in that case has considered and followed a judgment of Hon'ble Apex Court rendered in the case of Sneh Gupta Vs. Devi Sarup as reported in [2009] 16 SCC 194 and thereafter, it was held by Hon'ble Bombay High Court that the Tribunal was correct in dismissing the M.P. by its order dated 10.04.2013, as being beyond the period of four years provided u/s. 254(2) of Income Tax Act. Hence it is seen that the judgement of Hon'ble Bombay High Court in this case is in line with the judgement of Hon'ble Apex Court rendered in the case of Sneh Gupta Vs. Devi Sarup (supra) and as per this judgment, the present dispute is covered against the assessee.
9. Now we examine the applicability of two judicial pronouncements on which reliance is placed by ld. AR of assessee. The first judgement is the judgement of Hon'ble Gujarat High Court rendered in the case of Peterplast Synthetics (P.) Ltd. Vs. ACIT (supra). This judgement of Hon'ble Gujarat High Court is in respect of unamended provisions of section 254(2) as per which the M.P. could have been filed by assessee within four years from the date of Tribunal order. In our considered opinion, two important differences are there in the old provisions and new provisions of sub section (2) of section 254. As per the old provisions, the limitation period was four years from the date of order and not four years from the end of the month in which the Tribunal order was passed whereas as per the amended provisions, the limitation period is six months from the end of the month in which the Tribunal order is passed. Hence it is seen that some period i.e. from the date of order till the end of that month is M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 7 of 9 provided for service of the order on the assessee in normal course although in a given case as in the present case, the date of order and end of the month in which the order is passed by the tribunal is same. In our considered opinion, in view of this change in the provisions of section 254 (2), this judgment of Hon'ble Gujarat High Court is distinguishable because in that case, the limitation period was starting from the date of Tribunal order and not from the end of the month in which the Tribunal order was passed. Secondly in the present case, the order was not only passed by the Tribunal on 31.08.2017 but it was pronounced by the Tribunal in open court on 31.08.2017 and was also uploaded on the website of the Tribunal and hence, in our considered opinion, when the Tribunal order is pronounced in the open court then on the same date, it should be considered as the order served on the assessee on same date but in the case Peterplast Synthetics (P.) Ltd. Vs. ACIT (supra), the tribunal order is dated 20.02.2007 and pronouncement of tribunal order in open court has started much later after a decision of Hon'ble Delhi High Court.
10. The third difference is this that the Tribunal order in the case of Peterplast Synthetics (P.) Ltd. Vs. ACIT (supra) was passed ex-parte qua the assessee and hence, no one was present before the Tribunal when the appeal was heard and the matter was decided but in the present case, Shri Nageshwar Rao, Advocate and ld. AR of assessee appeared before the Tribunal on 28.08.2017 and made arguments and thereafter the Tribunal order was pronounced in the open court on 31.08.2017. Considering these differences, in facts and in law, we are of the considered opinion that this judgement of Hon'ble Gujarat High Court is not applicable in the facts of the present case.
11. Now we examine the applicability of the Tribunal order rendered in the case of M/s. Universal Print O Pack Vs. ITO in M.A. No. 40/Chd/2018 (in ITA No. 858/Chd/2016) dated 27.04.2018. In this case, the Tribunal has simply followed the same judgement of Hon'ble Gujarat High Court rendered in the case of Peterplast Synthetics (P.) Ltd. Vs. ACIT (supra) without noticing the various differences in facts and in law as noted above. This is by now a settled position of law that there are two exceptions to the doctrine of precedent viz. Principle of perincuriam order and the principle of sub silentio. In the present M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 8 of 9 case, the Tribunal order rendered in the case of Shri Jagmohan Gurbakshish Singh vs. DCIT (supra) is suffering from the sub silentio principle because in the present case, the Tribunal has blindly followed the judgement of Hon'ble Gujarat High Court rendered in the case of Peterplast Synthetics (P.) Ltd. vs. ACIT (supra) without noticing the differences in facts which we have already discussed. For this reason, in our considered opinion, this Tribunal order is not lay down a binding precedence because this Tribunal order is suffering from sub silentio principle.
12. As per above discussion, we have seen that none of the two judgements which were cited before us by ld. AR of assessee is rending any help to assessee in the present case. In our considered opinion and in view of these facts that the impugned Tribunal order was pronounced by the Tribunal in open court on 31.08.2017 and as per the amended provisions of section 254(2), limitation period of six months is provided not from the date of order but from the end of the month in which the order was passed and this takes care of the normal service period required for service of the Tribunal order on the assessee in most of the cases, and hence in our considered opinion, as per these amended provisions of section 254(2) of the Act, the limitation period of six months has to be counted from the end of the month in which the Tribunal order was passed and as per that principle, the present M.P. filed by the assessee is time barred. The Tribunal order cited by ld. DR of revenue rendered in the case of Smt. Padma K. Bhat vs. ACIT (supra) supports our this view. Respectfully following this Tribunal order, we hold that the present M.P. filed by the assessee is time barred and therefore, the same is not maintainable.
13. In the result, the M.P. filed by the assessee is dismissed. Order pronounced in the open court on the date mentioned on the caption page.
Sd/- Sd/- (SUNIL KUMAR YADAV) (ARUN KUMAR GARODIA) Judicial Member Accountant Member Bangalore, Dated, the 12th October, 2018. /MS/ M.P. No. 69/Bang/2018 (in IT(TP)A No. 403/Bang/2017) Page 9 of 9 Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, Income Tax Appellate Tribunal, Bangalore.